Civil Liberties in the Time of Ebola

It’s happened. Ebola has come to the United States. In the past month, we’ve had the first Ebola diagnosis in the United States—and now the first infection. A nurse who was attending Thomas Duncan has now contracted the disease and is being treated in a Texas hospital.

While some experts assure people that a widespread epidemic of Ebola is unlikely in the United States, others say that a worldwide pandemic is only a matter of time. And just like doctors around the country are preparing for if Ebola defies expectations and becomes widespread in the United States, so too should liberty advocates be ready for the assault on liberties that may occur should it—or any other disease—become widespread enough to warrant government intervention.

This likelihood has long been recognized by the government. Multiple laws, both federal and state, have been passed to provide for “emergency response,” which in all cases lumps acts of terror together with all public health crises. The Model States Emergency Health Powers Act (MSEHP), written a mere six weeks after September 11, 2001, was drafted at the request of the Center for Disease Control (CDC) and included involvement from a variety of national associations of governors and legislators. Not a law in its own right, its purpose was to “assist” state legislatures in creating their own laws by acting as a model.

In other words, it is clear that the government is prepared to act, but individual civil liberty protections are not part of that preparation. Instead, citizens are mere “disease vectors” or chess pieces that need to be moved across the board—or hidden away.

The existing legal infrastructure surrounding quarantine and isolation only applies until a state of emergency is declared. Until that point, instituting a quarantine order for individuals, as with Duncan Thomas’ family, requires a court order—at least in Texas. Area-wide, instead of individual-specific, quarantines can also be imposed during a state of emergency, and allows the release of private health data to law enforcement. It is the state of emergency with its associated loss of constitutional rights that is concerning. Once a state of emergency is declared, it can be renewed for an indefinite number of 30-day periods until overridden by the legislature, and at that point court orders can be more “expeditiously” requested for quarantine.

Let me pause and clarify some waters that have been muddied by Alex Jones. The fear is not that the population will be imprisoned en masse in the infamous FEMA camps.

Rather, there are three fundamental concerns about law enforcement response to disease. The first is that quarantine or isolation (quarantine is for a limited amount of time to see if someone is infected, whereas isolation is indefinite segregation of someone known to be infected) might be applied unequally and without regard for constitutional protections.

The family of Thomas Duncan, the first person diagnosed with Ebola in the United States, has been quarantined in their apartment since October 2. The Dallas County Fire Marshall recently announced that they are being moved to another facility to wait out the remainder of the 21-day incubation period for Ebola. If they leave, they will be charged with a third-degree felony.

The second concern is more insidious (if one can imagine it) and further reaching. The concern is that a “public health emergency” become yet another “permanent state of emergency.” There are also plenty of slow-moving but serious diseases (such as AIDS or drug-resistant tuberculosis) that might justify a permanent, low-profile “public health emergency.” In Texas, a court order is required to enact quarantine on an individual, but, as I have said, in a state of emergency the process for receiving a court order becomes more “expeditious.”

A permanent state of emergency for a disease is not outside the realm of possibility. Since 2001, the United States has been in a “state of emergency” due to an unspecified terrorist threat. Bush first enacted this declaration in 2001, and thereafter renewed it every year; President Obama has continued to renew the declaration. The mere proclamation of emergency allows for the activation of more than 500 dormant laws, many of which invoke martial law or allow for curtailment of First Amendment speech. Were this “state of emergency” to be applied to a public health situation, the few civil liberties protections already in place would be elided.

The final concern is that the sacrifice of civil liberties will not even be effective in curtailing disease. In addition to protecting civil liberties, there is some evidence that voluntary quarantine is more effective than enforced quarantine, as Canada discovered during the 2005 SARS outbreak. Conversely, South Africa is discovering the high cost of involuntary isolation. There, people infected with drug-resistant tuberculosis are kept in isolation for up to two years in prison-like wards. However, patient “breakouts” are common, leading to a cycle of increased security and greater limitation of movement, which prompts the desire for freedom, which leads to escape, which encourages furthers lock downs, in a vicious cycle of repression and escape that does nothing to actually inhibit the spread of disease.

There are myriad reasons to be concerned. But, of course, we shouldn’t dive into full-on, conspiracy-theory panic. Vigilance is required, and caution is warranted. More than anything, liberty-minded people can help by proposing alternatives to oppressive, ineffective quarantines. The ACLU has various recommendations, including ensuring that only medical facilities and never prisons are used to house patients; judges should be included in list of protected people; accountability is required for all personnel involved in a public health emergency; and reimbursements should be made for lost wages, damaged or commandeered property, and medical bills.

Ebola is unlikely to become a true health crisis in the United States, but let’s view it as a warning and start working to get these protections in place.

About the author

Caroline K. Gorman has been involved in the liberty movement for three years via the Libertarian Party. For two years she served as the Travis County Chair and as a member of the Texas State Libertarian Executive Committee, as well as the Platform Committee. In college, while majoring in philosophy and the history of math and science, she led a Libertarian Classics study group. She believes whole-heartedly in the principles of liberty, tolerance, an open market and the absolute minimum of state intrusion on the individual’s life. Right now she lives and works in Austin, Texas, and is applying to law school.

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